Opinion
D057187
09-06-2011
In re Christopher G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Christopher G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J218053)
APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed in part and reversed in part.
The juvenile court sustained a petition alleging that Christopher G. committed assault by means of force likely to cause great bodily injury (Count 1), battery (Counts 2-4), and battery causing serious bodily injury (Count 5). The court also found true that Christopher personally inflicted great bodily injury as to Count 1 and that the offenses were committed for the benefit of a street gang. Christopher appeals, contending: (1) the pre-trial procedures used to identify him were impermissibly suggestive; (2) substantial evidence does not support a finding that he personally caused great bodily injury; (3) the juvenile court erroneously permitted a gang expert to opine regarding his participation in a gang; (4) there was insufficient evidence to support the gang enhancement; and (5) Count 2 should be dismissed because it is a lesser included offense of Count 5. We agree that Count 2 is a lesser included offense of Count 5 and thus reverse the judgment as to Count 2. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Fight
One day after school, a group of high school students, including Matthew M., Byron S., Isaiah V., Tiera W., and Kamille M. were going to a Jack in the Box across the street from Vista High School when they noticed a large group of 30 to 40 Hispanic males. Matthew and Byron are African American. Matthew and his group stopped and expressed concern about walking into a bad situation, knowing that many fights occur in the area near Jack in the Box.
More than 20 individuals from the Hispanic group approached and one from the group, Ezequiel, said, "Where you from?" Matthew responded by saying, "We're not from here." Ezequiel again asked, "Where you all from?" and Matthew repeated, "We're not from here." Ezequiel then said, "No. No. V.H.B." and people in the Hispanic group yelled out, "Vista" and "We don't like niggers!"
The Hispanic group spread out, rushed at Matthew and Byron, and a fight ensued with Ezequiel throwing the first punch at Matthew. Five to seven people also attacked Byron. At some point during the fight, Matthew tripped over a bike and fell to the ground. Matthew's friend, Jesus, witnessed the fight from across the street and saw two males from the Hispanic group attack Matthew while he was on the ground. According to Jesus, Christopher kicked Matthew in the face. Matthew did not know whether Christopher aimed at him, but recalled that he was involved as one of the people "swinging and fighting." During the fight, the Hispanic group was yelling "VHB," "BK," "black killer," and "go back to Africa."
San Diego Sheriff Deputy Mario Genera was in the Vista High School parking lot when he saw the fight. Deputy Genera indicated that there was a "big mob" of 30 to 40 Hispanic persons and a group of eight to ten African American students. He saw a member of the Hispanic group go after an African American student. At that point, Deputy Genera approached in his car, sounded the siren, and the groups began to disburse.
Matthew sustained injuries, including an eye that was swollen shut for several days, a split lip that required sutures, and injuries to his wrist and thumb that required him to wear a brace. B. Suspect Identifications
Deputy Genera took statements from Matthew and Byron and, the next day, had multiple witnesses come to his office to identify suspects. Deputy Genera gave the witnesses a yearbook and student directories and asked them to identify anyone in the books that was involved in the fight. The first group that met with Deputy Genera included Tiera, Kamille, Byron and two other witnesses. They sat around a conference room table and were advised not to talk and to identify suspects on their own. Deputy Genera then met with each person individually regarding their identifications.
Tiera went through the books and pointed out three people that she thought were involved in the incident. The third person that Tiera identified was Christopher. She indicated that she made the identifications based on her own memory and that she was confident that those people were involved in the attack. Tiera also identified additional persons after another witness pointed out their photos. Tiera could not identify Christopher in court.
At trial, Kamille testified that she looked through the books that Deputy Genera gave her, but did not make any pretrial identifications. Kamille also stated that she knew Christopher from school, but did not see him at the incident and did not get a good look at the group. Deputy Genera, however, testified that prior to trial Kamille identified multiple suspects, including Christopher as a "fighter."
At trial, Byron initially stated that he did not identify anyone when shown the books, but later acknowledged identifying at least one person as being involved in the incident. Byron stated that the other witnesses selected photos and asked Byron if he remembered them, but he could not recall any of the persons that the other witnesses picked out. Byron testified that he knew Christopher from school, but that he did not see him at the fight.
The day after the incident, Jesus also met with Deputy Genera to identify people involved in the fight. Jesus was there with another witness and each was given their own book to look through. Jesus went through the entire book and identified Christopher, who he also recognized from school. After Jesus identified Christopher, Deputy Genera responded by saying, "Yes. He's already been identified." The other witness in the room then came forward, looked at the picture, and said, "Yes. That guy was there." Jesus also identified Christopher in court.
Two days after the fight, Matthew went through the yearbook while his brother and Deputy Genera were present. Matthew identified Christopher as being involved in the fight. In court, Matthew testified that he recognized Christopher as one of the boys fighting and that he recognized him from school.
DISCUSSION
I. Pretrial and In-Court Identifications
Christopher contends the trial court violated his due process rights by the admission of pretrial and in-court identifications which he maintains were tainted and rendered unreliable by suggestive pretrial identification procedures. Specifically, Christopher argues that: (1) Tiera's, Kamille's, and Jesus's pretrial photographic identifications were improperly influenced by other witnesses; and (2) Jesus's in-court identification of Christopher was tainted by Deputy Genera's prior assurance that he picked the right person in the pretrial identification process. We find Christopher's arguments unavailing.
A pretrial identification procedure will violate a suspect's due process rights if it is " ' "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." ' " (People v. Sanders (1990) 51 Cal.3d 471, 508.) Due process requires the exclusion of identification testimony only if the pretrial identification procedures were unnecessarily suggestive and the resulting identification was unreliable. (People v. Yeoman (2003) 31 Cal.4th 93, 123, citing Manson v. Brathwaite (1977) 432 U.S. 98, 106-114.) Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness's identification the identity of the person suspected by the police. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) The defendant bears the burden of showing unfairness "as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
The reliability of an in-court identification that follows a suggestive pretrial identification turns on the totality of the circumstances, including such factors as the witness's opportunity to view the suspect at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the suspect, the witness's level of certainty at the time of the identification and the amount of time that elapsed between the crime and the identification. (People v. DeSantis, supra, 2 Cal.4th at p. 1222.)
Here, Christopher complains that the pretrial identification procedure was impermissibly suggestive because the witnesses were not separated during the process. It is Christopher's burden to show that some aspect of the pretrial identification procedure " 'caused [the] defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.) Christopher did not meet this burden. Although the procedures employed during the pretrial identifications were not ideal, the evidence shows that Tiera, Kamille and Jesus independently identified Christopher as being involved in the incident. While Tiera and Kamille were in the same room looking through books of photographs, there is nothing in the record indicating that they influenced each other's decision to identify Christopher. Rather, Tiera testified that she made the identifications based on her own memory and that she was confident that those people were involved in the attack. Moreover, Deputy Genera testified that he never saw the witnesses point out suspects to others and that their talking was limited to "small talk" and making fun of pictures of their friends.
Similarly, there is nothing in the record that suggests Jesus's pretrial identification of Christopher was influenced by other witnesses. To the contrary, Jesus went through the yearbook and picked out Christopher, whom he also recognized from school. Jesus did not discuss his identification with the other witness that was present until after he reported his identification to Deputy Genera. Moreover, Deputy Genera's statement, "Yes. He's already been identified," did not taint the pretrial identification because Jesus had already identified Christopher on his own.
Christopher's arguments are merely speculation and do not demonstrate that the pretrial identification procedures caused him to "stand out" in a way that suggested witnesses should select him. (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.) This conclusion eliminates any need to address the second "totality of the circumstances" prong, and thus disposes of Christopher's challenge to Jesus's in-court identification testimony. (People v. Brandon, supra, 32 Cal.App.4th at p. 1052; People v. Ochoa (1998) 19 Cal.4th 353, 412 [if we find the challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends].) However, even if we were to consider Christopher's arguments concerning Jesus's in-court identification, we find the arguments unavailing, especially because Jesus knew Christopher from school. This is not a situation where the witness was identifying a stranger. Rather, Jesus was identifying someone that he knew from school and had seen numerous times. Under these circumstances, we conclude that Jesus's in-court identification was sufficiently reliable that the admission of evidence concerning that identification did not violate Christopher's due process rights.
II. The Great Bodily Injury Enhancement
A. Standard of Review
Where a defendant challenges the sufficiency of the evidence supporting a conviction, our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) Before a conviction can be set aside for insufficiency of the evidence, it must clearly appear that there is insufficient evidence to support it under any hypothesis. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.) B. Sufficiency of the Evidence to Support the Great Bodily Injury Enhancement
Christopher argues the evidence was insufficient to support the true finding that he personally caused great bodily injury on Matthew. We disagree.
Penal Code section 12022.7, subdivision (a) (§ 12022.7), imposes a sentence enhancement when the defendant "personally inflicts" great bodily injury on any person (other than the defendant's accomplice) in the commission of a felony. The "personally inflicts" language in section 12022.7 was construed in People v. Cole (1982) 31 Cal.3d 568 (Cole)to exclude liability for aiders and abettors. In Cole, the defendant (during a burglary and robbery) ordered his accomplice to kill the victim and blocked the victim's escape while his accomplice repeatedly struck the victim, but defendant never himself struck the victim. (Id. at p. 571.) The defendant challenged the section 12022.7 enhancement, and Cole held the "personally inflicts" statutory language clearly and unambiguously required that the individual accused of inflicting great bodily injury must be "the person who directly acted to cause the injury. The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Id. at p. 572.)
In People v. Corona (1989) 213 Cal.App.3d 589 (Corona),this court evaluated whether Cole precluded a section 12022.7 sentence enhancement when the defendant was one of numerous assailants who attacked the victim, knocked him to the ground and repeatedly hit and kicked him, causing the victim numerous significant injuries, primarily to his head. Addressing the true finding on the section 12022.7 allegation, Corona held there was substantial evidence to support the finding. (Id. at pp. 591-595.) Moreover, Corona concluded the Cole analysis did not apply in the context of a "group pummeling." (Corona, at p. 594.) "[W]hen a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered." (Ibid.)
The holding in Corona was affirmed by our Supreme Court in People v. Modiri (2006) 39 Cal.4th 481 (Modiri).The court in Modiri observed that nothing in the terms "personally" or "inflicts" as used in conjunction with "great bodily injury" requires the defendant to act alone in causing the victim's injuries. (Ibid.) Further, "nothing in Cole precludes a person from receiving enhanced sentencing treatment where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim's injuries cannot be measured or ascertained." (Cole, supra, 31 Cal.3d at p. 495.)
Here, Christopher asserts that his case is akin to the circumstances in People v. Magana (1993) 17 Cal.App.4th 1371 (Magana).His reliance on that case, however, is misplaced. In Magana, the court held that when multiple assailants assault a victim but it is nevertheless possible to distinguish and trace the specific injury constituting the great bodily injury to the specific assailant's conduct, Corona does not permit imposition of the section 12022.7 enhancement on anyone other than the assailant whose conduct caused the injury. (Magana, at p. 1381.) The evidence in this case demonstrates that Matthew was the victim of a group attack. Unlike in Magana, his injuries cannot necessarily be traced to one assailant. Rather, Matthew was attacked by multiple people, including Christopher. Several witnesses identified Christopher as being one of the "fighters" and at least one witness, Jesus, testified that Christopher kicked Matthew in the face. The evidence is sufficient to establish that Christopher participated in the group beating and that his conduct "was of a nature that it could have caused the great bodily injury suffered." (Corona, at p. 594.)
III. The Gang Enhancement
A. Background
The parties stipulated that Vista Homeboys is a criminal street gang whose primary activities include the commission of robberies and assaults with deadly weapons.
At trial, the prosecution called Detective Joseph Ellis as its expert on criminal street gangs. Detective Ellis testified that the Vista Homeboys gang uses the nickname "VHB" and is almost exclusively composed of Hispanic members. He stated that gang members often call out the name of their gang during crimes as a means of intimidation and to identify themselves with a group perceived to be dangerous.
Detective Ellis described gang turfs and their importance to the gang. In discussing the danger posed to nonmembers in a gang's turf, Detective Ellis described a "hit up" as a situation where a gang member confronts the nonmember by asking "Where are you from?" If the person replies with "I'm not from here," the common outcome is some type of further confrontation, such as an assault or robbery. According to Detective Ellis, numerous crimes committed by the Vista Homeboys were crimes against African Americans and "the motivation for attacking them was . . . that the gang members did not like having African Americans on their turf."
In regard to Christopher, Detective Ellis testified that he is not a documented member of Vista Homeboys. However, based on his personal knowledge and background information that he obtained regarding Christopher, Detective Ellis opined that Christopher was an active participant in the Vista Homeboys gang on the day of the fight. B. Admission of the Gang Expert's Opinion on Mental State
Christopher contends the juvenile court abused its discretion in allowing Detective Ellis to testify that he was an active member of Vista Homeboys on the day of the fight because such testimony includes a presumption that he intended to commit the offense to benefit the gang. We disagree.
" 'As a general rule, a trial court has wide discretion to admit or exclude expert testimony . . . . An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.' " (People v. Valdez (1997) 58 Cal.App.4th 494, 506, citations omitted.) "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) However, gang experts cannot express any opinion they may have about gangs and gang activities. (People v. Killebrew (2002) 103 Cal.App.4th 644, 651, 654 (Killebrew).)In Killebrew, where the offense charged was conspiracy to possess a handgun, the trial court erred in allowing a gang expert to testify, through the use of hypothetical questions, that "each of the individuals in the three cars (1) knew there was a gun in [one car] and a gun in [a second car], and (2) jointly possessed the gun with every other person in all three cars for their mutual protection." (Id. at p. 658.) The gang expert therefore improperly "testified to the subjective knowledge and intent of each occupant in each vehicle" and "simply informed the jury of his belief of the suspects' knowledge and intent on the night in question" which were "issues properly reserved to the trier of fact." (Ibid.) However, " Killebrew does not preclude the prosecution from eliciting expert testimony to provide [the trier of fact] with information from which the [the trier of fact] may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant at trial. [Citation.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.)
In contrast to Killebrew, the prosecution in this case did not question Detective Ellis about Christopher's specific intent. Instead, the prosecutor asked for Detective Ellis's expert opinion about whether Christopher was a member of VHB on the day of the incident. "[A]n individual's membership in a criminal street gang is a proper subject for expert testimony." (People v. Duran (2002) 97 Cal.App.4th 1448, 1464, citing People v. Valdez, supra, 58 CalApp.4th at pp. 506-507.) We disagree with Christopher's contention that the expert's opinion that he was a member of VHB is indistinguishable from testimony that he "had the specific intent to assist, promote, or benefit VHB." A defendant's membership in a gang does not necessarily lead to the conclusion that the defendant committed a crime specifically to benefit the gang. We therefore conclude that the expert testimony at issue did not impermissibly offer an opinion on the ultimate issue of Christopher's intent, and was within the scope of issues on which gang experts are qualified to give expert testimony. The juvenile court thus did not abuse its discretion in admitting the testimony. C. Sufficiency of the Evidence to Support the Gang Enhancement
We also disagree with Christopher's contention that the evidence was insufficient to support the gang enhancement because there was no evidence that he had the specific intent to promote, assist, or benefit a criminal street gang. Specifically, Christopher asserts that there was no evidence to support Detective Ellis's testimony that the crime was committed for the benefit of VHB. However, we find sufficient evidence to the contrary.
Detective Ellis's testimony that the crime was committed for the benefit of the Vista Homeboys gang was rooted in the facts and evidence presented about the crime. The fight in this case started when a group of Hispanic males approached Matthew and someone from that group initiated a "hit up" by asking, "Where you from?" After Matthew responded by saying, "We're not from here," people in the Hispanic group yelled out, "Vista" and "We don't like niggers!" Multiple witnesses testified that during the fight, members of the Hispanic group also yelled out, "VHB," "BK," and "black killer." According to Detective Ellis, gang members call out their gang name as a means of intimidation and to associate themselves with a dangerous group. It is reasonable from this evidence to conclude that the offense was committed "for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1).) Accordingly, we conclude the evidence was sufficient to sustain true findings on the gang enhancement.
IV. Lesser Included Offense
Christopher finally contends Count 2 (battery on Matthew) should be dismissed because it is a lesser included offense of Count 5 (battery causing serious bodily injury to Matthew). The prosecution concedes that simple battery is a lesser included offense of battery causing serious bodily injury, but nevertheless argues that Count 2 is not a lesser included offense of Count 5 because it was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (d). We are not persuaded by the prosecution's arguments.
Although the general rule in California is that a single act or course of conduct by a defendant can lead to multiple convictions (Pen. Code, § 954; People v. Pearson (1986) 42 Cal.3d 351, 354, "a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]" (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) For purposes of this rule, "we apply the elements test, asking whether ' " 'all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.' " ' [Citation.] In other words, 'if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' [Citation.]" (Ibid.)
In People v. Sloan (2007) 42 Cal.4th 110, 113 (Sloan), the Supreme Court considered whether "enhancement allegations [can] be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses." In that case, defendant argued that "he could not be convicted of assault by means of force likely to produce great bodily injury and battery with serious bodily injury . . . because each can be viewed as a necessarily included offense of willful infliction of corporal injury on a spouse resulting in a traumatic condition . . . when enhanced with a great bodily injury finding." (Id. at p. 115.) The court concluded that "[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements," reasoning that it would be irrational to immunize a defendant from conviction on the assault and battery charges because a great bodily injury enhancement was found true on the corporal injury to a spouse charge. (Id. at p. 118-119.)
Here, the prosecution argues that because it alleged Count 2 as felony battery committed for the benefit of a criminal street gang and the juvenile court found true the gang enhancement, Count 2 is not a lesser included offense of Count 5. In considering whether multiple convictions are proper, we consider only the statutory elements, not the accusatory pleading. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Thus, the prosecution's allegations as to Count 2 are of no consequence and we are left only to consider whether the true finding on the gang enhancement allows for conviction on both Counts 2 and 5.
In Sloan, consideration of the enhancement allegation would have prevented multiple convictions. In contrast, if we consider the gang enhancement in this case, multiple convictions would be proper because the elements of battery (Count 2) with the enhancement are not fully encompassed in battery causing serious bodily injury (Count 5). However, we see no reason to depart from the settled rule that "enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses." (Id. at p. 114.) Enhancements do not serve to turn offenses into new crimes not defined by the Legislature. "Section 186.22(d) is not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime. [Citation.]" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-899.) Accordingly, we decline to consider the gang enhancement for purposes of the rule prohibiting multiple convictions based on necessarily included offenses and conclude that Count 2 must be stricken as it is necessarily included in Count 5.
DISPOSITION
The judgment is reversed as to Count 2 and the matter is remanded to the juvenile court to strike this count. In all other respects, the judgment is affirmed.
MCINTYRE, Acting P. J. WE CONCUR:
O'ROURKE, J.
IRION, J.